Clubb v Edwards

By plurality, Kiefel CJ, Bell and Keane declared that the acts did not breach the constitutional implied freedom of political communication. Before reaching that conclusion, the judges briefly reiterated upon the three stage test for breach of the freedom of political communication doctrine (the Lange test [7]). The test as stated by the plurality was substantially similar to the court's prior formulation of the test in McCloy v New South Wales.[8]

It was applied as follows:

• Did the law effectively burden the implied freedom of political communication in terms, operation or effect?[9]
  The court found that the communication bans outside of abortion clinics were an effective burden on political speech. This was held to be so, even though the law was not expressly targeted at communications concerning governmental and political matters.[10] Nevertheless, the court did not determine whether Clubb's communications were political in nature, primarily due to lack of evidence. The court made a distinction between political and non-political communications, noting that:

  "A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial"

  However, it was enough for the plurality that the relevant law could have impacted upon actual political communications, even if the Clubb matter did not actually involve a political communication.[11] The court decided they should determine the matter anyway, because (1) the line between speech directed at politics and individual moral choices 'may be very fine when politically contentious issues are discussed', (2) the question might arise again in similar cases, and (3) if Clubb's contentions about the unconstitutionality of the law were correct; she would be entitled to have her conviction set aside; regardless of the nature of her speech.[2]

• Was 'the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?'[12]

The court explained that a law's purpose will be legitimate, so long as it doesn't impede the functioning of representative and responsible government. Clubb had argued that the true purpose of the law was the suppression of public expression of anti-abortion sentiment, and that this was not a legitimate purpose.[13] The Solicitor-General of Victoria submitted to the contrary that the law was concerned with the effect upon women and staff, of an environment of 'conflict, fear and intimidation' that had been created outside abortion clinics.[14] The Act itself,[15] expressly declared the purpose to be protecting the safety and well-being of persons accessing lawful medical services.[9] The plurality explained that the "protection of the dignity of the people of the Commonwealth ... is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government". Additionally, they noted "Generally speaking, to force upon another person a political message is inconsistent with the human dignity of that person. As Barak said, ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’." and that;

"when in Lange the Court declared that ‘each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’, there was no suggestion that any member of the Australian community may be obliged to receive such information, opinions and arguments." (per Kiefel CJ, Bell, Keane)

As the purpose of the law was found to be legitimate, the court then turned to the question as to whether it was appropriate and adapted to advance that legitimate object.

• Was the law 'appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?'[12] The court explained that this stage of the test would only assess whether the law could be seen as irrational in pursuing its objectives, or placing an undue burden upon political communication.[2] The communication prohibition was found to have passed this step in part because the laws were spatially limited. Clubb's assertions that on-site protests were especially effective for political communication about abortion, were rejected for lack of evidence. The court held that anti-abortion activists are able to communicate their messages anywhere outside the safe access zones. The balance of the law's burden upon speech was held to be adequate, as the law maintained people's dignity in preventing them from being held captive to unwanted political messages; while only being slight on burden due to the limited subject matter and geographical extent for the ban.

As the Victorian law was not held to have fallen afoul of the Lange test, Clubb's appeal was rejected.

Preston's appeal differed slightly at this stage due to different legislation, as it simply banned all protest activities about abortion within a certain geographic area. The High Court held that the Tasmanian law was 'aimed at protecting the safety, wellbeing, privacy and dignity of people', and because the ban on all protest activities about abortion was viewpoint neutral; (the court reasoned that the law could also theoretically include pro-abortion protests), the law's purpose was held to have passed the legitimacy stage of the test.[2]

The law was found to be suitable as it facilitated access to abortion services, and found to have been adequately balanced due to its geographic restriction, the slight burden, and lack of viewpoint discrimination. Preston's appeal was therefore also dismissed.

Each of the other justices of the court also ruled in favor of the respondents, while writing separate judgements rather than joining with the plurality.